472 F.

3d 791

UNITED STATES of America, Plaintiff-Appellee,

v.
Javier SAENZ-GOMEZ, Defendant-Appellant.
No. 06-2148.

United States Court of Appeals, Tenth Circuit.

January 2, 2007.

Joseph W. Gandert, Assistant Federal Public Defender, Albuquerque,

NM, for Defendant-Appellant.
David C. Iglesias, United States Attorney; William J. Pflugrath, Assistant
United States Attorney, District of New Mexico, Albuquerque, NM, for
Plaintiff-Appellee.
Before BRISCOE, EBEL, and TYMKOVICH, Circuit Judges.
BRISCOE, Circuit Judge.

Defendant Javier Saenz-Gomez pleaded guilty to illegal reentry after removal

following a conviction for an aggravated felony in violation of 8 U.S.C.
1326(a)(1), (2), and (b)(2) and was sentenced to a thirty-month term of
imprisonment. On appeal, Saenz-Gomez argues that the district court erred in
enhancing his sentence pursuant to 8 U.S.C. 1326(b)(2) and U.S.S.G.
2L1.2(b)(1)(B). We exercise jurisdiction pursuant to 28 U.S.C. 1291 and
affirm.1

I.
2

On February 13, 2001, a state grand jury returned a two-count indictment

charging Saenz-Gomez with possession with intent to distribute heroin and
conspiracy to distribute heroin. Saenz-Gomez pleaded not guilty. A jury found
him guilty of both counts and the state court sentenced him to a twelve-year
term of imprisonment, but suspended his sentence and placed him on probation
for five years. The court filed a written judgment and sentence on April 23,
2003. On May 2, 2003, before defense counsel filed a notice of appeal, the

Immigration and Naturalization Service ("INS") deported Saenz-Gomez to

Mexico, pursuant to expedited removal proceedings based on Saenz-Gomez's
conviction. Saenz-Gomez's counsel filed a timely notice of appeal on May 20,
2003, from the 2003 state conviction. On May 4, 2004, Saenz-Gomez was
again removed from the United States by immigration authorities for illegal
reentry. The New Mexico Court of Appeals affirmed Saenz-Gomez's 2003 state
conviction on August 9, 2005, and the New Mexico Supreme Court denied his
petition for certiorari on September 27, 2005.
3

On September 8, 2005, Saenz-Gomez was once again found in the United

States. He was indicted for illegal reentry to the United States after deportation
following a conviction for an aggravated felony in violation of 8 U.S.C.
1326(a)(1), (2), and (b)(2). Saenz-Gomez entered a guilty plea pursuant to the
terms of a plea agreement with the government, but reserved the right to contest
application of a twelve-level enhancement for reentry after removal following a
conviction for an aggravated felony, leaving the enhancement issue to the
discretion of the district court. Pursuant to the plea agreement, the government
agreed to recommend a three-level reduction for acceptance of responsibility
and to recommend a sentence at the low end of the sentencing guideline range.

The presentence report ("PSR") indicated that the base level for Saenz-Gomez's
offense was eight. See U.S.S.G. 2L1.2(a). Twelve levels were added, pursuant
to U.S.S.G. 2L1.2(b)(1)(B), because Saenz-Gomez was previously deported
"after a conviction for a felony drug trafficking offense for which the sentence
imposed was 13 months or less." U.S.S.G. 2L1.2(b)(1)(B). The PSR noted
that the relevant conviction was Saenz-Gomez's April 23, 2003, state felony
conviction for heroin trafficking. Three levels were subtracted for acceptance of
responsibility, resulting in a total offense level of seventeen. U.S.S.G. 3E1.1.

At sentencing, Saenz-Gomez objected to the PSR's application of the twelvelevel enhancement, arguing that his April 23, 2003, state conviction was not
final at the time of his removal and therefore not a conviction within the
meaning of 8 U.S.C. 1326(b) or U.S.S.G. 2L1.2, because he was deported
prior to exercising his right to a direct appeal on that conviction. The district
court accepted the twelve-level increase and determined that Saenz-Gomez's
offense level was seventeen, with a criminal history category of III, indicating a
guideline range of thirty to thirty-seven (30-37) months. The district court
sentenced Saenz-Gomez to thirty months. Saenz-Gomez filed a timely notice of
appeal.

II.

On appeal, Saenz-Gomez argues that the district court improperly applied the
twelve-level enhancement to his sentence because his 2003 state conviction for
heroin trafficking was not final at the time of his removal, and therefore is not a
conviction within the meaning of 8 U.S.C. 1326(b) or U.S.S.G. 2L1.2(b)(1)
(B). Specifically, he contends that for a conviction to serve as the basis for
deportation, that conviction must be final and a conviction is not final for
immigration purposes before direct appeal has been exhausted or waived.
Therefore, a judgment does not become a conviction within the meaning of 8
U.S.C. 1326(b) and U.S.S.G. 2L1.2(b)(1)(B) until the direct appeal process
has been exhausted or waived. Because he was deported before his direct
appeal process had been exhausted or waived, he has no "conviction prior to
removal" to serve as the basis for the sentencing enhancement applied by the
district court. The government argues that the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 ("IIRIRA") eliminated the finality
requirement for an alien's conviction, as codified in 8 U.S.C. 1101(a)(48)(A).

We review issues of statutory construction, including the district court's

interpretation of 8 U.S.C. 1326, de novo. Wright v. Fed. Bureau of Prisons,
451 F.3d 1231, 1233 (10th Cir.2006); United States v. Gonzalez-Coronado, 419
F.3d 1090, 1092 (10th Cir.2005). We review for clear error the district court's
factual findings regarding sentencing and review de novo its legal interpretation
of the sentencing guidelines. United States v. Aranda-Flores, 450 F.3d 1141,
1144 (10th Cir.2006).

Saenz-Gomez pled guilty to illegal reentry of a removed alien in violation of 8

U.S.C. 1326(a)(1), (2), and (b)(2). Section 1326(a) provides that "any alien
who has been denied admission, excluded, deported, or removed or has
departed the United States" and later "enters, attempts to enter, or is at any time
found in, the United States" shall be fined and imprisoned for no more than two
years. 8 U.S.C. 1326(a). However, Section 1326(b) provides that any alien
"whose removal was subsequent to a conviction for commission of an
aggravated felony . . . shall be . . . imprisoned not more than twenty years." 8
U.S.C. 1326(b)(2) (emphasis added). In turn, U.S.S.G. 2L1.2 provides for a
base offense level of eight for unlawfully entering or remaining in the United
States, but a defendant who "previously was deported, or unlawfully remained
in the United States, after a conviction for a felony drug trafficking offense for
which the sentence imposed was 13 months or less" should receive a twelvelevel enhancement. U.S.S.G. 2L1.2 (emphasis added).

This court has looked to 8 U.S.C. 1101, a definition section within the same
chapter as 1326, to interpret the meaning of terms within 8 U.S.C. 1326(b)

(2). See e.g., Gonzalez-Coronado, 419 F.3d at 1092-93 (looking to 8 U.S.C.

1101(a)(43) to define the term "aggravated felony" found in 1326(b)(2)).
Similarly, this court applies the definition of "conviction" found in 8 U.S.C.
1101 to U.S.S.G. 2L1.2(b). See e.g., United States v. Zamudio, 314 F.3d 517,
521-22 (10th Cir.2002). Section 1101(a)(48)(A) states:
10

The term "conviction" means, with respect to an alien, a formal judgment of

guilt of the alien entered by a court, or if adjudication of guilt has been
withheld, where

11

(i) a judge or jury has found the alien guilty or the alien has entered a plea of
guilty or nolo contendere or has admitted sufficient facts to warrant a finding of
guilt, and

12

(ii) the judge has ordered some form of punishment, penalty, or restraint on the
alien's liberty to be imposed. 8 U.S.C. 1101(a)(48)(A) (emphasis added).

13

To interpret a statute, we first examine the plain language. United States v.

Jackson, 248 F.3d 1028, 1030 (10th Cir.2001), cert denied 534 U.S. 929, 122
S.Ct. 291, 151 L.Ed.2d 215 (2001). "If the statutory language is clear, our
analysis ordinarily ends." Id. The courts have "consistently held that whether a
particular disposition counts as a `conviction' in the context of a federal statute
is a matter of federal determination." Zamudio, 314 F.3d at 521 (citing United
States v. Cuevas, 75 F.3d 778, 780 (1st Cir.1996)). In addition, federal law
defines the term "conviction" as used in the immigration context. Id. (citing
White v. I.N.S., 17 F.3d 475, 479 (1st Cir. 1994)).

14

The state court filed a written judgment and sentence on April 23, 2003,
memorializing Saenz-Gomez's felony drug trafficking conviction. "The term
`conviction' means, with respect to an alien, a formal judgment of guilt of the
alien entered by a court." 8 U.S.C. 1101(a)(48)(A) (emphasis added). The
state court's written judgment and sentence filed on April 23, 2003, falls
squarely within this statutory language and therefore qualifies as a conviction
under 8 U.S.C. 1326(b)(2) and U.S.S.G. 2L1.2(b)(1)(B). Because SaenzGomez was deported on May 2, 2003, nine days after a formal judgment of
guilt was entered against him by the court, he was "removed subsequent to a
conviction for commission of an aggravated felony" and "after a conviction for
a felony drug trafficking offense." 8 U.S.C. 1326(b)(2); U.S.S.G. 2L1.2(b)
(1)(B).

15

Saenz-Gomez cites several rules of statutory construction and looks to the

legislative history of the IIRIRA in arguing that Congress intended its

definition of conviction to include a finality rule, requiring exhaustion or
waiver of the direct appeal process prior to labeling a judgment a "conviction"
for immigration purposes. However, "it is a well established law of statutory
construction that, absent ambiguity or irrational result, the literal language of a
statute controls." Jackson, 248 F.3d at 1030 (citing Edwards v. Valdez, 789
F.2d 1477, 1481 (10th Cir.1986)). Further, "[w]hen the meaning of the statute
is clear, it is both unnecessary and improper to resort to legislative history to
divine congressional intent." United States v. Hunt, 456 F.3d 1255, 1270 (10th
Cir.2006) (quoting Edwards, 789 F.2d at 1481). In fact, Saenz-Gomez admits
in his brief that the definition of conviction found in 8 U.S.C. 1101(a)(48)(A)
"says nothing about the finality requirement." Appellant Brief at 18.
16

Because the plain language of 8 U.S.C. 1101(a)(48)(A) is clear and does not
lead to an irrational result, the statutory language controls and the written
judgment filed against Saenz-Gomez is a conviction for purposes of Section
1326(b) and U.S.S.G. 2L1.2. Further, because Saenz-Gomez was removed after
his conviction for a felony drug trafficking offense, the district court properly
applied the twelve-level enhancement provided in U.S.S.G. 2L1.2(b)(1)(B).

III.
17

We AFFIRM the district court's sentence.

Notes:
1

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the
determination of this appealSee Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is, therefore, ordered submitted without oral argument.